Stage set for class action hearing of O'Bannon vs. NCAA

Jun. 19, 2013
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Bill Russell, left, and Oscar Robertson, listen to comments from John Wooden on Nov. 19, 2006, in Kansas City, Mo, at the National Collegiate Basketball Hall of Fame. Russell and Robertson are two of the plaintiffs in a suit of former college football and basketball players against the NCAA, EA Sports and Collegiate Licensing Co. / Rich Sugg, Associated Press

by Steve Berkowitz, USA TODAY Sports

by Steve Berkowitz, USA TODAY Sports

OAKLAND -- After existing for months as a series of legal briefings and exhibits, expert reports and depositions, procedural skirmishes and small-scale rulings, a potentially landmark anti-trust lawsuit against the NCAA returns to a courtroom Thursday for what could be a major turning point in the case.

Lawyers for each side will appear before U.S. District Judge Claudia Wilken here for a hearing on whether the case should be certified as a class action. Lawyers involved with the case are not anticipating that she will issue a ruling Thursday, but her questions and reactions to each side's arguments may provide hints about her thinking on two separate, but related, issues: the immediate legal requirements for class certification and the broader merits of the plaintiffs' case.

During these types of hearings, Wilken -- the chief judge for the Northern District of California â?? "tells you what it is she would like you to focus on," said Steve Williams, an attorney who handles anti-trust and complex civil litigation for the Bay Area-based firm Cotchett, Pitre and McCarthy and has appeared before Wilken but is not involved in this case. "This case has been briefed very exhaustively. I expect the court to be deeply familiar with the arguments on both sides. I expect she may have questions that, within the papers, the sides haven't fully formed themselves."

Currently the case involves former UCLA basketball star Ed O'Bannon and more than a dozen other former college football and men's basketball players taking on the NCAA, video game manufacturer Electronic Arts and the nation's leading collegiate trademark licensing and marketing firm, Collegiate Licensing Co.

The plaintiffs allege that the defendants violated anti-trust law by conspiring to fix at zero the amount of compensation athletes can receive for the use of their names, images and likenesses in products or media while they are in school and by requiring athletes to sign forms under which they relinquish in perpetuity all rights pertaining to the use of the names, images and likenesses in ways including TV contracts, rebroadcasts of games, and video game, jersey and other apparel sales.

That's significant enough. It potentially brings into question the legality of the NCAA's longstanding system of allowing athletes to receive relatively few benefits beyond tuition, fees, room, board and books in exchange for playing games that, in the case of football and men's basketball players, generate billions of dollars for the NCAA and its member schools and conferences.

"Even if it's not on a class basis, it is still a very interesting challenge to the system and character of college sports," Williams said.

If the case is confined to O'Bannon and the other named plaintiffs only, the potential damages and systemic changes could be limited.

However, if Wilken certifies the suit as a class action, it could allow thousands of former and current football and men's basketball players to join the case. That could create the possibility of a damages award in the billions of dollars. In addition, if the plaintiffs were to get everything they have said they are seeking, it would force the establishment of an entirely new compensation arrangement for current NCAA Bowl Subdivision football players and Division I men's basketball players -- one under which "monies generated by the licensing and sale of class members' names, images and likenesses can be temporarily held in trust" until their end of their college playing careers.

For any of those wide-sweeping potential impacts to be play, though, Wilken must determine that the case meets criteria for class certification that are set under the federal rules of civil legal procedure. The criteria basically require that there be questions of law or fact that are common to the prospective wider class and that those questions are greater in number than any questions that affect individual members of the prospective wider class.

While it would seem that the NCAA's rules about what athletes can receive for playing sports create an overriding common question, two of the named plaintiffs â?? former Connecticut basketball player Tate George and former Alabama football player Tyrone Prothro â?? said in depositions by lawyers for the defendants that star players should be paid more than lesser players. That creates individual questions.

How does Wilken go about deciding this? In part, by considering the merits of the plaintiffs' case against the NCAA and its co-defendants.

The NCAA says considerable weight should be given to the merits of the plaintiffs' case â?? and that the case is a poor one. The NCAA maintains that numerous prior federal court rulings have upheld and reinforced the legality of its system limiting what athletes can receive in exchange for playing sports. It also contends that the plaintiffs have made improper and unfair changes in their legal strategy, trying change the case from being one exclusively about former athletes to one that includes current athletes -- and even with the change, that only leads back to its contention that individual questions like the compensation of stars and reserves override the common questions.

"The way they've changed their case makes it even less likely that they should be able to get a class certified here," NCAA executive vice president and general counsel Donald Remy said in an interview last week.

The plaintiffs say the case should be decided on its merits primarily at trial, not at the class-certification stage. However, they maintain their case is solid. For instance, they have filed numerous e-mails to and from a wide range of NCAA executive staff members, university presidents and chancellors, EA employees and CLC employees that they say show that the defendants were well aware that they were infringing on the athletes' rights to their names and likenesses.

Among them is an e-mail chain relating to the lawsuit among then-Big 12 Conference commissioner Dan Beebe, University of Texas-Austin president Bill Powers and Nebraska chancellor Harvey Perlman. In it, Perlman -- a former dean of the University of Nebraska College of Law -- wrote in part: "This whole area of name and likeness and the NCAA is a disaster leading to a catastrophe as far as I can tell."